Citation Nr: A21020655
Decision Date: 12/29/21	Archive Date: 12/29/21

DOCKET NO. 211006-190019
DATE: December 29, 2021

ORDER

Entitlement to a rating in excess of 10 percent disabling for right foot plantar fasciitis is denied.

Entitlement to a rating in excess of 10 percent disabling for right knee painful motion is denied.

Entitlement to a rating in excess of 10 percent disabling for left knee degenerative arthritis (previously evaluated as Left Knee Painful Motion) is denied.

Entitlement to a rating in excess of 10 disabling prior to February 7, 2021 and in excess of 20 percent disabling from February 7, 2021 and thereafter for left knee instability is denied.

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 30, 2011 is remanded.

FINDINGS OF FACT

1. During the period on appeal, the Veteran's right foot plantar fasciitis has been manifested by no worse than moderate symptoms.

2. During the period on appeal, the Veteran's right knee disability was characterized by painful motion; limitation of flexion to 30 degrees, limitation of extension to 15 degrees, a combination of limitation of flexion and limitation of extension, favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees have not been shown.

3. During the period on appeal, the Veterans left knee limitation of motion was characterized by painful motion; limitation of flexion to 30 degrees, limitation of extension to 15 degrees, a combination of limitation of flexion and limitation of extension, favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees have not been shown.  

4. Prior to February 7, 2021, the Veteran's left knee instability has been no greater than slight in severity.

5. From February 7, 2021, the Veterans left knee instability has been no greater than moderate in severity.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a rating in excess of 10 percent disabling for right foot plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes (DCs) 5276, 5284, 5269.

2. The criteria for entitlement to a rating in excess of 10 percent disabling for right knee painful motion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5260.

3. The criteria for entitlement to a rating in excess of 10 percent disabling for left knee degenerative arthritis (previously evaluated as Left Knee Painful Motion). have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5260.

4. The criteria for entitlement to a rating in excess of 10 disabling prior to February 7, 2021 and in excess of 20 percent disabling from February 7, 2021 and thereafter for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1964 to June 1966.

This matter was previously remanded by the Board in July 2020 for additional development, including a VA examination and to obtain SSA records. As there has been substantial compliance with prior remand directives, this matter is properly before the Board for adjudication.

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4. 

When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  38 C.F.R. § 4.7.  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.

In this regard, it should be noted that, during this appeal, the schedular criteria pertaining to knee instability under 38C.F.R. §4.71a, DC 5257, was amended effective February 7, 2021. See 85 Fed. Reg. 76,453 (November 30, 2020).  Additionally, effective February 7, 2021, plantar fasciitis was given its own diagnostic code.

Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03 (November 19, 2003).

However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38U.S.C. §5110 ; Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the Veteran's claim was received prior to the effective date of the regulation changes, the Board must consider the Veteran's left knee disability under both the old and the revised rating criteria and must apply the old rating criteria if the result is more favorable to the Veteran. Id.

1. Entitlement to a rating in excess of 10 percent disabling for right foot plantar fasciitis

The Veteran seeks an increased rating for right foot plantar fasciitis, presently rated as 10 percent disabling. The Board finds that a rating in excess of 10 percent is not warranted.

The Veteran's right foot disability is presently rated under Diagnostic Code (DC) 5276. In the present case, DC 5284 rates "other" foot injuries not specifically accounted for by the diagnostic criteria. DC 5276 rates acquired flatfoot. Therefore, the Veteran's disability is presently rated as an "other" foot disability, most nearly approximated by the ratings for flatfoot.

Under DC 5276, a noncompensable rating is assigned for mild flatfoot; symptoms relieved by a built-up shoe or arch support. A 10 percent rating is granted for moderate symptoms; weight-bearing line over or medial to great toe, inward bowing of the tendo-achillis, pain on manipulation and use of the feet, either bilateral or unilateral. A unilateral disability which is severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities, is granted a 20 percent rating. Finally, a 30 percent rating is assigned for a unilateral foot disability which is pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo-achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276.

Also applicable in this matter, DC 5284 provides for a 10 percent rating for "moderate" symptoms of the foot; a 20 percent rating for "moderately severe" symptoms of the foot; or a 30 percent rating for "severe" symptoms of the foot. 38 C.F.R. § 4.71a, DC 5284.

Terms such as "mild," "moderate," and "severe" are not defined by the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.

The Board notes that other rating criteria apply to the foot, for example, weak foot, claw foot, metatarsalgia, hallux valgus, hallux rigidus, hammer toe, malunion of the tarsal or metatarsal bones, or actual loss of use of the foot. However, as such pathology is not reported in this matter, the Board will not consider that rating criteria in adjudicating this case. 

Beginning February 7, 2021, a new diagnostic code rates plantar fasciitis. Specifically, pursuant to Diagnostic Code (DC) 5269 (plantar fasciitis), a 10 percent rating is warranted for plantar fasciitis, otherwise, unilateral, or bilateral. A 20 percent rating is warranted for unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. A 30 percent rating is warranted for bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. Note (1) to DC 5269 indicates that with actual loss of use of the foot, rate 40 percent. Note (2) indicates that if a veteran has been recommended for surgical intervention, but is not a surgical candidate, evaluate under the 20 percent or 30 percent criteria, whichever is applicable.

The Veteran underwent a VA examination in May 2008. The Veteran complained of right foot dorsum pain for last 4 to 5 years. He reported sharp pain during ambulation rated as a 7/10. The examiner noted that the Veteran underwent a bunionectomy in 2007. On examination, the examiner diagnosed the Veteran with mild hallux valgus deformity with degenerative changes, bilateral pes planus, and tendinitis.  However, there was no indication of swelling on use, characteristic callosities, or other indicia of severe disability.

The Veteran underwent a new VA examination in July 2014. He was diagnosed with pes planus and arthritis of the right foot. The Veteran did not report pain or functional loss. Additionally, the Veteran did not report flare-ups, and there was no objective evidence of pain on use during the examination. There was also no pain on manipulation of the feet. There was no evidence of swelling or characteristic calluses. There was no evidence of extreme tenderness of the plantar surface of the feet, and he did not have decreased longitudinal arch height on weight-bearing. There was no evidence of marked deformity or marked pronation. There was no inward bowing of the achilles tendon, nor any displacement or spasm of the achilles tendon. Pain in the right foot included pain on movement and weight bearing only. Factors such a pain, weakness, fatigability, and incoordination did not significantly limit functional ability during a period of flare or when the foot was used repeatedly over a period of time. The Veteran did not use any assistive devices. The examiner stated that his foot disability did not impact his ability to perform any type of occupational task.

The Veteran was again evaluated in September 2021. At that time, the examiner diagnosed the Veteran with right foot plantar fasciitis. The Veteran reported sharp intermittent pain in the right arch and pain that is worse in the morning when he first walks. He reported that he is unable to put any pressure on the soles of his feet, which makes it hard for him to walk. He reported treatment with physical therapy with no medications. He also reported flare-ups in his right foot with pain that is worse on rainy and damp days and with heavy lifting. The Veteran described is pain as sharp and precipitating factors include heavy lifting and dampness. On examination, no pain on accentuated use, extreme tenderness, marked deformity, or pronation was noted. Factors such as pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups or when the foot is used repeatedly over a period of time. 

The Board has carefully reviewed the evidence of record but finds no other medical or lay evidence upon which it may rate the Veteran's right foot disability.  While the Veteran has shown some symptoms, including intermittent pain in the right arch, he has not asserted that that pain has resulted in significant loss of use of the foot, short of some limits in walking due to the pressure in the soles of his feet. There is no indication that his foot pain has resulted in significant function loss of use of the foot. There is no evidence of marked deformity or pain on manipulation. Additionally, there is no evidence of pronounced deformity, such as marked pronation, extreme tenderness, marked inward displacement and severe spasm of the tendo-achillis on manipulation, and he has never required use of orthopedic shoes or appliances. Further, no tenderness was noted, it has not resulted in functional loss, such as would be indicative of "severe" symptomatology.  Accordingly, the Board finds that a rating in excess of 10 percent is not warranted prior to February 7, 2021.

For the period from February 7, 2021, the newly added DC 5269 for plantar fasciitis state that a 20 percent rating is warranted for one foot when the evidence shows no relief from both non-surgical and surgical treatment.  In this case, the evidence shows that surgical treatment has not been attempted.  Accordingly, a 20 percent rating under this DC is not warranted. 

In sum, the Board finds that moderate symptomatology in the right foot has been shown for the period on appeal. However, at no point have more severe symptoms been shown, such as is anticipated by the diagnostic criteria. Therefore, a rating in excess of 10 percent is denied.

2. Entitlement to a rating in excess of 10 percent disabling for right knee painful motion.

3. Entitlement to a rating in excess of 10 percent disabling for left knee degenerative arthritis (previously evaluated as Left Knee Painful Motion).

The Veteran asserts that his service-connected right and left knee disabilities are more disabling than reflected by the respective currently assigned disability ratings. 

Knee disabilities are rated according to the varying types of functional impairments that may be present. Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a.

Diagnostic Code 5261 governs limitation of extension and provides for a noncompensable rating for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for a limitation to 15 degrees, 30 percent for a limitation to 20 degrees, 40 percent for extension limited to 30 degrees, and a maximum of 50 percent for a limitation to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. 

In this case, a rating in excess of 10 percent for either knee disability based upon limitation of motion is not warranted. Specifically, in a January 2017 VA examination, the Veteran reported left knee pain that is worse with prolonged weightbearing, running, kneeling, and squatting. He reported that his left knee gives out occasionally and dislocates on him. In regard to his right knee, he stated that it started bothering him while favoring his left knee and he experiences pain occasionally that is worse with prolonged use. Despite the Veteran's reports of pain and limitations with certain activities, on examination his range of motion of both knees was normal. The examiner noted pain on examination with flexion and extension and evidence of tenderness and pain on weightbearing. However, there was no evidence of additional functional loss due to pain or repetitive testing in either knee. There was also no ankylosis or incapacitating episodes of arthritis of either knee.

The Veteran's December 2018 VA examination revealed a diagnosis of knee strain and arthritis of both knees. The Veteran reported milder right knee pain and some pain on stairs. He reported flare ups of the knees when there is stress on his knees from carrying heavy weight. On examination the Veteran exhibited normal range of motion in the right knee and left knee flexion to 135 degrees and extension 140 degrees. The examiner noted pain on examination with the left knee, but no functional loss, pain on weight bearing, or crepitus. Additionally, no additional functional loss on repetitive testing or history of recurrent effusion was noted. Further, there was no additional loss of motion which would support a higher rating. 

The Veteran underwent an additional VA examination in July 2021. The Veteran reported being incapable of prolonged walking or climbing stairs. He reported that he experiences stiffness in the morning which prevents him from getting out of bed without help. Additionally, he reported that his left knee is worse than his right knee and his knee gives way, cracks, and pops. The Veteran did not report flare-ups of either knee. The examiner diagnosed left knee instability, left knee arthritis, and patellofemoral pain syndrome of both knees. On examination, the Veteran exhibited right knee flexion to 110 degrees and left knee flexion to 100 degrees. There was evidence of pain on extension and flexion in the right and left knee. The examiner noted the Veterans right knee to be moderate in severity and his left knee to be moderate to severe in severity. The Veteran was unable to perform repetitive testing due to fear of pain. However, there was no evidence that limitation of flexion approached 30 degrees, that limitation of flexion approached 15 degrees, or evidence of ankylosis or incapacitating episodes of arthritis.  Therefore, based on the evidence of record, the Board determines that a rating in excess of 10 percent based upon limitation of motion for the right and left knees is not warranted. 

The Board also considered whether a higher disability evaluation is warranted on the basis of functional loss due to fatigability, incoordination, pain on movement, pain on weight-bearing, flare-ups, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; see Sharp v. Shinseki, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 206 -07 (1995). In this case, the Veteran has complained that he is limited in running, kneeling, and squatting due to pain. However, while the Veteran experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss, and his complaints are adequately contemplated in the ratings he currently receives. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Of note, the Veteran's January 2017 and December 2018 VA examiners, did not find any evidence of additional loss of motion or functioning after repetitive testing, flare-ups, and/or weight bearing that would warrant a higher rating for his left and right knee.

Based on the medical evidence of record, the board finds that a 10 percent rating based on limitation of motion accurately represents the Veteran's right and left knee disabilities. In reaching this conclusion, the Board has considered the Veteran's own statements regarding the severity of his right and left knee disabilities, and accounts for its effect on his daily life. However, at no time does the medical or lay evidence indicate that the Veteran's right and left knee flexion is limited to 30 degrees or extension is limited to 15 degrees, even when factors such as pain, weakness, and fatiguability are considered. Therefore, a rating in excess of 10 percent for right and left knee limitation of motion for the period under consideration is not warranted.

4. Entitlement to a rating in excess of 10 disabling prior to February 7, 2021 and in excess of 20 percent disabling from February 7, 2021 and thereafter for left knee instability

Prior to February 7, 2021 

The Veterans left knee instability was rated as 10 percent disabling prior to February 7, 2021. 

Knee instability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257.

Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6.

After a review of the evidence, the Board determines that a higher rating for instability of the left knee was not warranted. 

Specifically, during a VA examination in May 2008, the Veteran reported pain in his midcap area with occasional swelling with several episodes of falling, knee locking, and giving way. However, on examination, the Veteran exhibited normal flexion and extension. No joint instability or recurrent subluxation was noted. 

The Veteran underwent VA examinations in June 2013 and July 2014. During a June 2013 VA examination, the Veteran complained of progressive symptoms and flare-ups when jogging, jumping, walking on uneven surfaces. However, joint stability testing was normal, and no recurrent subluxation was noted. The July 2014 examiner also noted normal joint stability testing and no recurrent subluxation. 

Finally, the Veteran underwent new VA examinations in January 2017 and December 2018.  In his January 2017 examination, the Veteran reported that his left knee occasionally gives out and dislocates on him, but he is able to reduce himself, or minimize the impact of his instability on his knee. On joint stability testing, the examiner noted slight lateral instability of the left knee with no recurrent subluxation. The December 2018 VA examiner found no evidence of joint instability and testing was normal. Further, no recurrent subluxation was noted. 

Based on the evidence as discussed above, the Board finds that a rating in excess of 10 percent for left knee instability is not warranted. The Veterans VA examinations do not reveal more than slight instability prior to February 7, 2021 and indicate that the Veteran has no history of recurrent subluxation.

From February 7, 2021 and thereafter

The Veteran is seeking a higher rating for his left knee instability. He was granted an increased rating of 20 percent disabling for his left knee instability from February 7, 2021, per a July 2021 rating decision. 

In this case, the Board notes that the new criteria under the revised DC 5257 are either equally helpful or more restrictive than the prior criteria. Specifically, a compensable knee instability rating is predicated on persistent, or at least recurring instability. A rating in excess of 10 percent requires either a sprain, a ligament tear, or surgical repair of the patellofemoral complex. According to his July 2021 C&P examination report, the Veteran does not meet these requirements. Specifically, the examiner indicated no for ligament tear, sprain, or surgical repair. 

After review of the evidence, the Board finds that the old rating criteria are more favorable to the Veteran. Under the old criteria, a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. During the Veterans July 2021 examination, he reported that his left knee gave way. On examination, the examiner found that the Veteran had recurrent subluxation or persistent instability of the left knee that required a prescription for a brace. Additionally, the examiner found the Veteran exhibited recurrent patellar instability. The examiner noted that the Veterans left knee disability was "moderate to severe." However, the evidence does not suggest that the Veteran is unable to walk, despite his doing so with the assistance of a knee brace, and though his left knee gives way at times, the record does not indicate that he suffers from frequent falls. Accordingly, a higher rating based on severe symptoms is not for application.

The Board determines that there is no basis for a separate rating based on meniscal impairments under DCs 5258 or 5289 because his multiple VA examinations denote no meniscal impairments, and there are no such impairments noted in the Veteran's medical records. Similarly, the Veteran has never been diagnosed with genu recurvatum, and, therefore, a rating under DC 6263 is not warranted.

The Board recognizes the Veteran's statements regarding the worsening severity of the disabilities on appeal. As stated, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

While the Veteran is competent to report his physical symptoms as they are observable by his senses, his lay observations are outweighed by the conclusive results of several examinations and the lack of evidence of worsening symptoms in his medical records.

As such, the Board concludes that the weight of the evidence is against the claim for increased rating and there is no doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is denied. The Board's decision in this case is binding only with respect to the instant matter decided.

In summation, the Board finds that the Veteran's left knee instability is most accurately characterized as moderate, and thus, a disability rating in excess of 20 percent is not warranted.  

REASONS FOR REMAND

5. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 30, 2011.

The Veteran is seeking entitlement to a TDIU prior to November 30, 2011

During the period prior to November 30, 2011, the Veteran does not meet the schedular criteria for award of a TDIU. However, the Veteran was unemployed since 2000 and his employment history has been physical in nature. Additionally, the Veteran submitted a June 2018 private opinion where the examiner opined that the Veteran has not been able to secure and follow substantially gainful employment since he last worked as a taper due to his left patellofemoral joint and constant pain in his left knee. As such, the evidence indicates that the Veteran was unemployable due to his service-connected disabilities for the period prior to November 30, 2011. The Board is prohibited from assigning a TDIU based on 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001).

The record should be forwarded to the VA's Director of C&P Service or Under Secretary for Benefits for consideration of entitlement to a TDIU, for the period on appeal prior to November 30, 2011 in accordance with 38 C.F.R. § 4.16 (b).

The matters are REMANDED for the following action:

Forward the record to the VA's Director of C&P Service or Under Secretary for Benefits for consideration of entitlement to a TDIU, for the period on appeal prior to November 30, 2011.

 

 

ZAHEER MASKATIA

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Vample, Erica